McCrary v. Williams

SHARPE, J. In this cause a prima facie case.was made by the complainant for the reformation and fore-; closure of a mortgage given to his testator by. the re.spondents, who are husband and wife, upon the lands of the respondent Cárrie A. Williams. The defense. re: lied' on is that set up in the answer of.Mrs. Williams to effect that the mortgage was given upon no other consideration that as security for a debt of her husband, and is.therefore made'void.by section 2527 of the Code, which prohibits the wife’s suretyship for the husband. [253] To establish this defense the burden rests upon the respondents to prove it, and the question to be decided is whether they have done so.. For the respondents there was introduced positive testimony to the effect that 'previous to the execution of the mortgage in question, there had been dealings between Mr. McCrary, the deceased mortgagee, and the respondent, J. W. Williams, and of statements made by the mortgagee in which he spolce of the debt as being due for some liorses and a wairon he had sold to J. W. Williams, and on which lie held a mortgage due shortly before the present mortgage was executed. Taken as a whole, the evidence for the respondents if believed leads with reasonable certainty to the conclusion that this mortgage on Mrs. Williams’ land was given to secure a balance due by J. W. Williams on the former mortgage and that no debt of Mrs. Williams entered into the consideration. 'To this evidence there is opposed in behalf of the complainant, only the testimony of a witness who in Mr. McCrary’s lifetime had charge for him of the collection of the note secured by this mortgage. He testifies that he had no personal knowledge of its consideration or whether it was given in settlement of J. W. Williams’ prior indebtedness, but that the old note and mortgage remained in possession of Mr. McCrary until his death, which occurred in October, 1897; and his testimony is further directed to showing recognition of the debt by both respondents, and promises of J. W. Williams to pay it, and also a joint promise of both respondents to pay it on condition that he, the witness, would assist them in borrowing money sufficient to pay both this and another mortgage, held by a third person on Mrs. Williams’ land. As to these matters the complainant’s witness does not materially contradict the respondents’ testimony,, and is not inconsistent with the theory of the defense which is solely that the debt which the mortgage purports to secure was the debt of J. W. Williams alone. Discarding all testimony subject to objection made, enough remains to amply support that theory. [254] It follows that the mortgage must be held void for the reason stated, and the court will not decree reformation as to the description of property, since if corrected the mortgage would still be inoperative. Let the decree be affirmed at appellant’s cost.